Do direito de retenção atribuído ao promitente-comprador no âmbito do processo de insolvência do promitente-vendedor

Abstract

The Supreme Court of Justice through Rulings 4/14 and 4/19 Standardising Jurisprudence handed down in insolvency proceedings, has produced a restrictive interpretation of paragraph f) of no. 1 of article 755 of the Civil Code, considering that right of guarantee, even when faced with the prevalence accorded to the mortgage (if previously registered) only applies to the beneficiary of the intended sale in those cases where the property, under conveyancing, is intended for housing or private use. Therefore, in insolvency cases affecting the intended vendor, the Supreme Court of Justice understands that when the property is destined for housing, provided the respective assumptions have been verified, the credit of the intended purchaser is guaranteed by the right of retention prevailing over the mortgage. The truth is that a restrictive interpretation of paragraph f) of no. 1 of article 755 of the Civil Code does not seem legally permissible, as it has no support in law. Furthermore, the right of retention thereby provided shall not be applicable in insolvency proceedings, as it contemplates an imperative regime that does not provide for the application of that precept and, consequently, the attribution of such a right of guarantee. Therefore, the credit of said promissory beneficiary shall be classified as common and no longer as guaranteed credit. The differentiation of regimes has led the Supreme Court of Justice to correct interpretation of the law, even if contra legem. On a legislative change to article 106 of the Insolvency Code granting the beneficiary of the promise, even if with merely obligatory effectiveness and in which conveyancing has occurred, the right of retention provided for in paragraph f) of no. 1 of article 755 of the Civil Code, without admitting a restrictive interpretation, will allow adequate legal protection for this beneficiary.

Date of Award	30 Jan 2024
Original language	Portuguese
Awarding Institution	Universidade Católica Portuguesa
Supervisor	Maria de Fátima Ribeiro (Supervisor)